UNC-CH reverses itself on public records withholding request

A public-records request sparked a flip-flop at UNC-Chapel Hill going into the Memorial Day holiday, with campus officials first denying and then granting a Charlotte television station’s query for information that passed between a School of Government criminal-law specialist and Union County’s top prosecutor.

The reversal didn’t happen quickly enough to shield the institution from criticism in some quarters for basing initial refusal on a section of the N.C. Public Records Law that says “certain law enforcement records” aren’t public information.

UNC’s subsequent reversal suggests that “wiser heads prevailed and said, ‘We’re not going to fight this fight,’” said Brad Bannon, a criminal defense lawyer who, from the sidelines, was among those unhappy with the university’s initial handling of the matter.

The initial public records request came from WBTV, which sought information on an exchange between School of Government professor Jeff Welty and Union County District Attorney Trey Robison “regarding the potential for criminal charges against” a person or persons.

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Aside from being a degree-granting arm of the university, the School of Government is a sort of one-stop shop for local-government and judicial-system professionals who need state-of-the-art advice about strategic and operational problems. In the criminal justice arena, it’s not unheard-of for judges, defense lawyers and even prosecutors to seek counsel from its faculty on difficult matters.

“I myself have called Jeff Welty and asked him about a Fourth Amendment issue, because I know he’s steeped in that knowledge” and “gives you his honest opinion about where the case law is,” said Bannon, a lawyer well-known in North Carolina for his role on the defense team in the Duke lacrosse case.

Wiser heads prevailed and said, ‘We’re not going to fight this fight.’

Brad Bannon, criminal defense lawyer

It’s also normal for UNC to receive public-record requests, enough so that it’s set up a special in-house operation to process them all.

But things took a turn when the university denied WBTV’s initial, May 16 request for any Welty/Robison emails. The station responded with an online posting that claimed UNC had equated the School of Government to a law enforcement agency.

That overstated what UNC had actually said and glossed over the fact a DA’s office is involved in “investigating, preventing or solving violations of the law,” as the Public Records Law defines law enforcement.

“We understood from the Union County District Attorney’s Office that the document in question had the potential to be considered a criminal investigative record, which North Carolina public records law makes clear is exempt from the law,” said Joanne Peters Denny, UNC’s chief spokeswoman, who added that “we did not claim to be a law enforcement agency at any point.”

In turning down the initial request, “we alerted the [station] to let them know that if the investigative agency determined that these records were not criminal investigative records, we would be prepared to release them,” she added.

UNC’s public tracking of records requests indicates that the university closed the file on WBTV’s request on May 22, and then reopened it the afternoon of May 26 — the Friday going into Memorial Day weekend. In between, WBTV publicized the flap and apparently asked UNC officials to reconsider, and The Herald-Sun asked Peters Denny for comment on the matter.

After further review, UNC decided that since Robison’s office had declined to “affirm its advice that [the] potentially responsive records were considered records of an ongoing criminal investigation,” the university would hand them over. The station on Tuesday posted a story saying it had received four pages of material.

On the law, UNC officials “believe the statute refers to the record itself, regardless of who the custodian of the record is,” Peters Denny said.

The Public Records Law says law enforcement isn’t allowed “to prohibit or prevent another public agency having custody of a public record” from releasing it, and that “the use of a public record in connection with a criminal investigation or the gathering of criminal intelligence shall not affect its status as a public record.”

Another provision says the disclosure of investigative information that’s been given to a prosecutor is also controlled by the N.C. Criminal Procedure Act, which governs the trial process.

Bannon said if he asks Welty for advice, he doesn’t assume the exchange “would necessarily be protected as a confidential communication” unless he actually brought the professor onto a defense team as an expert.

“When you read the statute, it seems very clear to me the School of Government is not a law enforcement agency and their records are not records of a criminal investigation as defined in the statute,” he said.

He added that he’s “for years” heard grumbling from fellow defense lawyers about school-originated advice — including some appearing in professors’ blog postings — that in their view skews “in favor of the state’s interpretation of cases.”

The flap thus risked “fuel[ing] this notion that the School of Government is sort of in the camp of prosecutors,” he said, echoing a point he made in a Facebook posting about the matter.

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